I read a story last week about this. Apparently, the person who found the phone made a very feeble attempt to find the owner as required by law. That means legally speaking his taking the phone was stealing. And Gizmodo made a feeble attempt to ascertain that he had come by the phone legally. So legally, they bought stolen property. So they are now being investigated for a crime.

It's a good thing that Gizmodo was able to increase its Web traffic and ad revenues because they're going to need it to pay their legal fees.

I am no Apple fan - not at all - but what Gizmodo did was wrong. I'm interested in this case for several reasons, but am particularly interested in whether or not the courts will label the blog as a news organization, and its writers (in this case, Jason Chen) as journalists.

I've always been annoyed by bloggers and forum posters who identify as journalists. Most journalists - those with a college degree - understand media law and ethics. Neither Gizmodo, nor its writers, know the first thing there is to know about the profession.

The way I see it. The individual who found the phone passed it on to a media publication who photographed it, provided a beyond extensive description including stating that it had been lost and precisely where it had been lost. Linked it to every major new publication the world over. You can't deny that, it was a far more effective way of finding the owner than a lost phone poster? So in fact the individual who found it made the BEST effort he could to make sure the owner was found.

In addition the owner 'Apple' initially refused to comment, essentially denied that it was their property. So the media publication was reasonable to seek to verify that it was the owner and after that and promptly returned the property.

It doesn't seem like a crime to me. No where does the law insist that the property be returned 'discretely' so in fact the tech blog and the individual went above and beyond their civic duty to ensure the phone was returned to it's owner

Gizmodo was not quick to return the product. Only after Apple threatened the Web site did they agree to return it.

Gizmodo tries to hide behind the shield law, citing a 2006 case where Apple could not legally get bloggers to identify their sources. That's fine, but it doesn't apply to this case because the sources in the 2006 case were not published. In this case, the entire scenario was laid out by Gizmodo for the world to view, including the name of the guy who found the prototype, the timeline, and even emails and letters from Apple demanding that Gizmodo return the prototype.

reppaT saidGizmodo was not quick to return the product. Only after Apple threatened the Web site did they agree to return it.

Apple initially publicly refused to comment/denied any connection with it and that it was an Iphone V4.

It's reasonable that gizmodo, given this contradictory behavior would be duty bound to request proof of apple's ownership and would retain the property until such could be determined

For example...if asked you did you loose a sum of money and you said no, publicly and in front of witnesses. But later found out it was say $20k and tried to retract that statement and claim ownership. it would be reasonable for me to doubt such a claim/ require proof no?

The way I see it. The individual who found the phone passed it on to a media publication who photographed it, provided a beyond extensive description including stating that it had been lost and precisely where it had been lost. Linked it to every major new publication the world over. You can't deny that, it was a far more effective way of finding the owner than a lost phone poster? So in fact the individual who found it made the BEST effort he could to make sure the owner was found.

In addition the owner 'Apple' initially refused to comment, essentially denied that it was their property. So the media publication was reasonable to seek to verify that it was the owner and after that and promptly returned the property.

It doesn't seem like a crime to me. No where does the law insist that the property be returned 'discretely' so in fact the tech blog and the individual went above and beyond their civic duty to ensure the phone was returned to it's owner

The person who found the phone sold it to another party (Gizmodo). In the state of California this is illegal as you cannot sell something that isn't your property

MonkeyPuck saidIf I am incorrect, I am all ears. Please show how a corporation can direct a criminal law suit.

By phoning the police or district attorney's office, and telling them you believe a crime has been committed against your company, just like private citizens would report what they think to be a crime against them.

But unlike a private citizen in Apple's case, the notification would have come from their legal department, enabling them to suggest to the county specific potential violations of law, and what items to include in the search warrant. I find it totally unlikely that the San Mateo district attorney became that interested in a lost iPhone prototype without some prompting from Apple. I mean, if I lost my own iPhone, and Gizmodo showed it on the Internet, do you think a district attorney's office would have gotten involved?

MonkeyPuck saidIf I am incorrect, I am all ears. Please show how a corporation can direct a criminal law suit.

By phoning the police or district attorney's office, and telling them you believe a crime has been committed against your company, just like private citizens would report what they think to be a crime against them.

But unlike a private citizen in Apple's case, the notification would have come from their legal department, enabling them to suggest to the county specific potential violations of law, and what items to include in the search warrant. I find it totally unlikely that the San Mateo district attorney became that interested in a lost iPhone prototype without some prompting from Apple. I mean, if I lost my own iPhone, and Gizmodo showed it on the Internet, do you think a district attorney's office would have gotten involved?

I asked how a corporation can "direct" (I did say law suit when I meant criminal investigation). Of course Apple like anyone can file a criminal complaint (which actually hasn't beed done in this instance *Update* Apple did report the theft) but they cannot direct the investigation. The handling of the investigation is up to the police and the DA. The idea that Apple is behind the police searching Jason Chen's office/residence is without merit.

To me the interesting component to all of this is if the federal and California press shield laws apply. I really have no opinion on this as I really don't have enough knowledge of how the law has been applied in the past but I am curious to see what the result is.

*Update*: It is worth noting that the crime being investigated isn't posting pictures online it was the sale of the phone by the finder to Gizmodo. In California this is a crime. Nick Denton, founder of Gawker, is the person who announced to the public that Gizmodo purchased the phone and by admitting that also admitted that Gizmodo had violated California law. This situation is something that Gawker/Gizmodo brought on itself.

The way I see it. The individual who found the phone passed it on to a media publication who photographed it, provided a beyond extensive description including stating that it had been lost and precisely where it had been lost. Linked it to every major new publication the world over. You can't deny that, it was a far more effective way of finding the owner than a lost phone poster? So in fact the individual who found it made the BEST effort he could to make sure the owner was found.

In addition the owner 'Apple' initially refused to comment, essentially denied that it was their property. So the media publication was reasonable to seek to verify that it was the owner and after that and promptly returned the property.

It doesn't seem like a crime to me. No where does the law insist that the property be returned 'discretely' so in fact the tech blog and the individual went above and beyond their civic duty to ensure the phone was returned to it's owner

The person who found the phone sold it to another party (Gizmodo). In the state of California this is illegal as you cannot sell something that isn't your property

Define sold....

I would say they offered him a reward on behalf of Apple, or compensated him for the good publicity they expected to receive from being the individual to return it.

The way I see it. The individual who found the phone passed it on to a media publication who photographed it, provided a beyond extensive description including stating that it had been lost and precisely where it had been lost. Linked it to every major new publication the world over. You can't deny that, it was a far more effective way of finding the owner than a lost phone poster? So in fact the individual who found it made the BEST effort he could to make sure the owner was found.

In addition the owner 'Apple' initially refused to comment, essentially denied that it was their property. So the media publication was reasonable to seek to verify that it was the owner and after that and promptly returned the property.

It doesn't seem like a crime to me. No where does the law insist that the property be returned 'discretely' so in fact the tech blog and the individual went above and beyond their civic duty to ensure the phone was returned to it's owner

The person who found the phone sold it to another party (Gizmodo). In the state of California this is illegal as you cannot sell something that isn't your property

Define sold....

I would say they offered him a reward on behalf of Apple, or compensated him for the good publicity they expected to receive from being the individual to return it.

I should so be a lawyer

Yeah.... if that is the type of argument you would use then you would probably want to rethink the lawyer part. There is the part where Nick Denton said his company paid for the phone so you are basically contradicting the person who paid for it but whatever floats your boat. Luckily Gawker has competent legal council and are arguing via the shield law rather than trying to tap dance around what happened.

What will be interesting is whether bloggers are considered reporters. California's shield law states that search warrants don't cover a journalist's "notes, outtakes, photographs, tapes or other data of whatever sort" related to his or her reporting. This enforces freedom of the press.

Graphite_HB saidWhat will be interesting is whether bloggers are considered reporters. California's shield law states that search warrants don't cover a journalist's "notes, outtakes, photographs, tapes or other data of whatever sort" related to his or her reporting. This enforces freedom of the press.

Had Gizmodo received information about the iPhone, it would have been protected. The issue is with stolen property they purchased.

The only thing I can see that Gizmodo did wrong was take apart the phone for its internal specs. I don't think that right at all knowing the phone did not belong to them, but I don't see what about that means having to go through all of his digital belongings.

As I understand it the real question at hand is the overly broad search warrant. That search warrant authorized the seizure of Chen's computer rather than specifying files on the computer that had to do with the prototype. With that big butterfly net the warrant grabs all of Chen's data, including that which may be protecting confidential sources.

Chen has every right to be shielded as a journalist (the blogger question has been answered before). However, he is not allowed to commit a crime and call it journalism.

On the question of the shield law it seems likely enough that the search will turn out to be faulty. The police seem concerned enough that they claim not to have actually searched the computers, only seized them. If they were so sure of their warrant they would have proceeded with the investigation.

Giz is, however, really screwed on the question of the property itself. They really cannot argue that they didn't know whose property it was or how to return it, given that they specifically paid to purchase it. In fact, they are on record offering inducements to people to bring them Apple prototypes.

If I buy Tanker's prototype motorcycle knowing full well that it belongs to Zombie then I will likely be guilty of unlawful conveyance, conversion, and receiving stolen property.

If I then take the motorcycle apart and publish photographs of its inner mechanism I am really opening myself up to enormous civil damages. After all, I have published a road map for Tanker's competitors in a fiercely competitive multi-billion dollar enterprise.

Giz new exactly what they were doing. They did this purely to create circulation and competitive advantage for themselves. The legal exposure that they have to criminal and civil penalty as a result is the "risk of the enterprise" that they engaged in.

They decided that this was all worth the risk and so they went ahead. Now Apple and the State of California are perfectly within their rights to respond.

On a completely separate point, the story that Woz told about the dismissed engineer is really egregious. For that Jobs ought to be bitch slapped, I agree with Tank.

MunchingZombie said

Graphite_HB saidWhat will be interesting is whether bloggers are considered reporters. California's shield law states that search warrants don't cover a journalist's "notes, outtakes, photographs, tapes or other data of whatever sort" related to his or her reporting. This enforces freedom of the press.

Had Gizmodo received information about the iPhone, it would have been protected. The issue is with stolen property they purchased.

The way I see it. The individual who found the phone passed it on to a media publication who photographed it, provided a beyond extensive description including stating that it had been lost and precisely where it had been lost. Linked it to every major new publication the world over. You can't deny that, it was a far more effective way of finding the owner than a lost phone poster? So in fact the individual who found it made the BEST effort he could to make sure the owner was found.

In addition the owner 'Apple' initially refused to comment, essentially denied that it was their property. So the media publication was reasonable to seek to verify that it was the owner and after that and promptly returned the property.

It doesn't seem like a crime to me. No where does the law insist that the property be returned 'discretely' so in fact the tech blog and the individual went above and beyond their civic duty to ensure the phone was returned to it's owner

apparently, the finder didn't even do the most obvious thing of asking the bar owner about the possible owner or giving it to the bar owner to return it. Or calling Apple to return it. No, the finder didn't do what would be required by law to establish a good faith effort to return the phone. He sold it to Gizmoto and Gizmoto bought it for $5000. Guzmotom didn't check out the finder's attempts to return it and establish that it was truly legally "found" property. There are legal standards for all this. Neither the finder nor Gizmoto has satisfied those standards, or at least that is what will be decided in the lawsuit. At this time, it appears that the phone is legally stolen property and Gizmoto bought stolen property.

Caslon14000 saidapparently, the finder didn't even do the most obvious thing of asking the bar owner about the possible owner or giving it to the bar owner to return it. Or calling Apple to return it. No, the finder didn't do what would be required by law to establish a good faith effort to return the phone. He sold it to Gizmoto and Gizmoto bought it for $5000. Guzmotom didn't check out the finder's attempts to return it and establish that it was truly legally "found" property. There are legal standards for all this. Neither the finder nor Gizmoto has satisfied those standards, or at least that is what will be decided in the lawsuit. At this time, it appears that the phone is legally stolen property and Gizmoto bought stolen property.

Actually the finder did call Apple. Perhaps you should as usual try checking your facts.

Caslon14000 saidapparently, the finder didn't even do the most obvious thing of asking the bar owner about the possible owner or giving it to the bar owner to return it. Or calling Apple to return it. No, the finder didn't do what would be required by law to establish a good faith effort to return the phone. He sold it to Gizmoto and Gizmoto bought it for $5000. Guzmotom didn't check out the finder's attempts to return it and establish that it was truly legally "found" property. There are legal standards for all this. Neither the finder nor Gizmoto has satisfied those standards, or at least that is what will be decided in the lawsuit. At this time, it appears that the phone is legally stolen property and Gizmoto bought stolen property.

Actually the finder did call Apple. Perhaps you should as usual try checking your facts.